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Why Dianne Feinstein shouldn’t be in line to replace Joe Biden

Sen. Dianne Feinstein of California, who is the second-longest serving Democrat in the Senate, will be 90 years old when her term ends in 2024. And according to a recent report from the San Francisco Chronicle, Feinstein has been struggling with her memory and has become worrisomely reliant on staff.

In written statements, Feinstein has pushed back on the suggestions that she’s unfit to serve — but the article has sparked another round of concern about the absence of age limits in a Congress where the youngest member of Democratic leadership is 71-year-old Senate Majority Leader Chuck Schumer of New York, and where the 88-year-old Republican Sen. Chuck Grassely of Iowa is running this year to hold on to his seat. Across both parties, the average age of lawmakers has ticked up, but Feinstein’s reported cognitive decline could theoretically pose a risk to the country’s stability in January.

If the Democrats manage to maintain control of the Senate, Feinstein will likely become president pro tempore, which is technically the presiding officer of the body when the vice president is absent. That would place Feinstein directly into the presidential line of succession, potentially setting up a constitutional crisis should the unthinkable occur during her tenure.

That would place Feinstein directly into the presidential line of succession, potentially setting up a constitutional crisis should the unthinkable occur during her tenure.

The job itself is an odd one, whose actual duties have changed along with the Senate. For most of the 18th and 19th centuries, vice presidents spent most of their time executing what was thought of as their primary day job: president of the Senate. That meant there was only rarely a need for a president pro tempore (president “for a time”) to be chosen.

In 1792, Congress passed the first Presidential Succession Act, which held that should both the presidency and vice presidency be vacant because of death, resignation or illness, the president pro tempore would be next in line. If nobody had the job, then it would fall to the speaker of the House to “act as president … until the disability be removed, or a president shall be elected.”

But by the time we hit the 20th century, things had changed. The job of Senate pro tempore was no longer an ad hoc one but was instead held continuously by one person so long as their party remained in the majority. Meanwhile, after years being seen as more a part of the legislative branch, the vice president’s role slowly shifted to take on more duties of the executive branch.

Presidential succession had changed too; in 1886, Congress swapped out the heads of Congress for the Cabinet officers in the succession, arguing that the Senate president pro tempore wasn’t a job known for its executive skills. The closest a president pro tempore had come to becoming president before had been during Andrew Johnson’s impeachment trial. (One of the likely reasons Johnson was acquitted was that the liberal Sen. Benjamin Wade, an Ohio Republican, would have been the one to replace him.)

Because of the rise of majority leaders in the Senate, today the role is mostly ceremonial, granted to the most senior member of the party in the majority. Sen. Patrick Leahy, a Vermont Democrat, is currently president pro-tempore, but he’s retiring at the end of this year and leaving behind Feinstein as his possible replacement. Should the GOP manage to gain a majority in the Senate, the title would likely pass back to Grassley, who is, as was mentioned above, the same age as Feinstein and is running for re-election this fall.

This matters because the Presidential Succession Act of 1947 put the two congressional officers back into the line of succession, ahead of the members of the Cabinet. The change was proposed by President Harry Truman, who had himself ascended to the presidency upon the death of Franklin Roosevelt.

“It was my feeling that any man who stepped into the presidency should have held at least some office to which he had been elected by a vote of the people,” Truman would later write in his memoir. The speaker of the house, who just happened to be a friend of Truman’s at the time, would come before the Senate president pro tempore in this new setup.

Now, you could ask why I’m singling out the president pro tempore when, in the line of succession, it falls after speaker of the House. After all, Speaker Nancy Pelosi, a California Democrat, is herself 81 years old — and her top deputies are about the same age. But that’s a quirk of Pelosi’s streak of dominance at the head of the House Democratic Caucus. Seniority is not a precondition for holding the post.

Pelosi’s predecessor, Rep. Paul Ryan, a Republican from Wisconsin, was sworn in at 45, making him the youngest speaker in more than 100 years. Pelosi’s possible replacement as speaker should the GOP win this November, House Minority Leader Kevin McCarthy of California, is a relatively young 57 years old. Pelosi’s most likely Democratic successor, Rep. Hakeem Jeffries, a New York Democrat, is 51.

The president pro tempore is the only role listed in the Constitution that all but requires its holder to be one of the oldest members of Congress under the current system. That’s a terrible system to have in place when there are already concerns about how well the system would fare if an attack were to incapacitate or kill the president, vice president and speaker. And while the secretary of state would take over if the president pro tempore were determined to be unfit, that seems like the kind of power struggle you want to avoid during the level of crisis this scenario imagines.

Right now, the role is both a sinecure that has little authority and a crucial insurance against the collapse of government during a catastrophe. That’s entirely untenable. Feinstein’s current health issues illustrate that either the job’s qualifications need to change, or the presidential order of succession does — or both. It would be gambling with the fate of our republic to leave things as they stand.

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